Melbourne Law School - Theses

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    The influence of conferences of the parties on the content and implementation of their parent treaties
    Rioseco Sullivan, Sebastian Andres ( 2021)
    Conferences of the Parties (‘COPs’) are intergovernmental meetings established by treaties. They are formed by representatives of all the states parties and they meet periodically to review and promote the execution of the convention that establishes them. COPs are empowered to perform several activities to achieve their objectives, such as adopting normative decisions, monitoring the implementation of measures by states parties, managing funds, and setting up subsidiary organs. The literature on COPs is not abundant and it has two main characteristics. First, it is based almost exclusively on multilateral environmental agreements adopted between the 1970s and the late 1990s. Second, it focuses on specific topics, such as the nature of COPs, the implications of COP normative activities for state consent in treaty law-making, and the legal status of COP decisions. These features reveal some gaps that deserve to be further studied. This thesis explores the ways in which COPs influence international law. It considers the following question: how do COP activities affect the content and the implementation of their parent-treaties? To provide an answer the thesis focuses on the normative activities of COPs to identify patterns in their relationship with the content and implementation of their parent treaties. The analysis is based on four case studies from different areas of international law: the WHO Framework Convention on Tobacco Control, the Convention for the Protection and Promotion of the Diversity of Cultural Expressions, the Convention on Cluster Munitions; and UN Convention Against Corruption. Building on the literature on COPs and on wider international legal scholarship, including approaches that consider ‘law and literature’ and studies of fragmentation and regime interaction, the thesis demonstrates that COP decisions develop the content and support the implementation of their parent treaties. COPs use their ‘standard-setting’ function to specify the substance of their treaty provisions. In particular, COP resolutions use this role to (i) increase what states parties must do to comply with their obligations; (ii) establish procedures and timeframes; and (iii) give content to the meaning of words and expressions in the treaty. The thesis also contends that COP decisions promote the implementation of their treaties using diverse strategies to consolidate them, strengthening their social and political position. These mechanisms are (i) momentum-building; (ii) stigmatising the adversaries of their parent treaties, including non-parties; and (ii) connecting their conventions to powerful narratives and other international legal regimes. In addition, the thesis engages with the most relevant debates in the existing literature on COPs. It argues that while the case studies do not present situations where COP resolutions bind a state without its consent, other factors support the idea that the role of state consent in treaty law-making is attenuated in the context of COP activities. Concerning the legal status of COP decisions, the thesis claims that COP resolutions can produce legal effects through more paths than assisting in the interpretation of their parent treaties. The analysis of the case studies and their connection to certain ICJ decisions reveal the existence of these alternative avenues.
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    The interpretation of the use of force by international legal advisers
    Machado Ramirez, Sebastian ( 2020)
    What do international legal advisers think about when they think about the interpretation of the use of force? For the most part, these discussions have been canvassed in terms of the application of a rule (i.e., Article 31 of the Vienna Convention on the Law of Treaties or Article 38 of the ICJ Statute), but little attention has been paid to interpretation as a philosophical enterprise (i.e. philosophical hermeneutics). Even though hermeneutic scholarship is not commonly cited in international legal theory, some work reflects many of the same sensibilities. For example, much of the contemporary scholarship on the role of history in international law has shown similar movements to the hermeneutical tradition that flourished in Germany in the late eighteenth century, particularly on the importance of historiographical methodology. In addition, interpretive philosophy challenges some epistemic predicates upon which much of the existing, mainstream legal theory on the use of force is built. Some traditions within the world of interpretation highlight that there are alternatives to our way of conceiving reality – and our access to it – as a subject-object mediated relationship. In this context, I discuss how recasting international law as an experience rather than a discipline can articulate some of the possibilities overshadowed by existing discourses. This raises some serious objections to the way we use the past to justify recourse to the use of violence and brings back the political stakes to the argumentative arsenal that the legal adviser has at her disposal. Although the result is a seemingly unfettered argumentative freedom, I argue that the perception of unrestrained rules to guide these interpretive endeavours can be mitigated by the role of disciplinary tradition. By challenging historiographical methods and epistemic predicates, interpretive philosophy further highlights the legal adviser’s uniquely existential position. This means that the situation of advising – the existential moment where the adviser fuses her own horizon of expectations with that object of interpretation, and thereby engages in the experience of international law – essentially incorporates the interpreter’s normativity. Although this subjectivity of interpretation is not new to legal theory, its treatment in interpretive philosophy can provide some insight into the theory of action of a legal adviser when confronting a situation of the use of force. More than insisting on the invasion of bias into decision-making, I argue that prejudice is not only part of any interpretive engagement but one of the most exciting hermeneutic opportunities. Finally, I discuss how the existing expressions of hermeneutic sensibilities in international law as related to history, epistemology, and situatedness can challenge some mainstream narratives on the use of force in international law. By casting legal discourse related to the use of force in international law in the post 9/11 world in terms of its interpretive distortions, interpretive philosophy provides a way to conceive the role of the legal adviser as both critical and normative.
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    Aesthetics of Image in International Environmental Law
    Palmer, Alice Dene ( 2020)
    Environmental treaties often require judgements of aesthetic value yet how these judgements are made is not well understood. This thesis argues that images, particularly photographic images, are central to such judgements but that neither current practice nor scholarship properly account for the significance of images to decisions made under international law. Drawing on debates about aesthetic conceptions of the environment in the visual arts, and in the philosophy of environmental aesthetics, this thesis develops a critical understanding of image and aesthetic value in international law. My aim is to produce a jurisprudence of aesthetics adequate to the task of making image and aesthetic value meaningful in international environmental law. In the thesis, I undertake doctrinal interpretations of aesthetic value for three international environmental treaties – the World Heritage Convention, the Whaling Convention, and the Biodiversity Convention. I find that aesthetic value is conflated and displaced with other environmental values in treaty practice. Aesthetic value is, for example, combined with natural beauty, cultural and ethical values, and overlooked in favour of scientific and economic values of the environment. I consider these practices to compromise reasoned decision-making and, ultimately, the protection of the environment under those treaties. Referencing Anglo-American aesthetic philosophy, I engage visual art to reflect critically on the meaning of aesthetic value from photographs of the environment that I identify as artefacts used in treaty decision-making processes. I employ eco-critical perspectives to examine aesthetic values of natural beauty, the sublime and the picturesque in 19th century landscape art of Western Europe and Britain. Relying on the philosophy of environmental aesthetics, I conceive aesthetic value instead in terms of sensorial experiences of nature shaped by imagination, emotion and knowledge from different cultures. I maintain that this ‘now world’ aesthetic value of the environment can be understood from photographs as important, distinct and capable of protection in international law. I contend that the interrogation of images by international bodies would facilitate the proper judgement of aesthetic and other environmental values to justify the cooperative efforts of a plurality of states in environmental protection. Yet I find that photographs are treated as records of fact in international decision-making processes. They are not formally recognised as representations with layered meanings. To ignore or refuse the place of representational images in international law is improper in jurisprudential terms and inconsistent with the good administration of justice. It also denies international legal practice the concepts and methods required to exploit images for their rhetorical purchase. I conclude that aesthetic methods for the visual arts must be repurposed to articulate meanings for images in the making, implementation and enforcement of international law. In giving close attention to photographs used in treaty decision-making processes, I introduce the philosophy of environmental aesthetics to the interdisciplinary study of law and image, expanding the role of images in international law. I also make the environment’s aesthetic value visible to the practice of international environmental law in the face of indifference, from so many nation states, to the precious nature of the planet.